Conservatives on the Wisconsin Supreme Court have blocked a Dane County public health order requiring virtual instruction for children in grades third through 12, issuing their decision on a day when COVID-19 cases hit a new record high in the county.
The ruling was a victory for the coalition of private religious schools that challenged the order, who can now begin in-person instruction immediately.
But it was decried as a public health setback by Dane County Executive Joe Parisi.
"Tonight's decision by the Wisconsin Supreme Court will put kids and teachers back in group settings just as this pandemic hits a new peak in this community," Parisi said in a written statement.
The court's order was split along ideological lines, with four conservatives agreeing to take the case as an "original action" and temporarily "enjoining," or blocking the part of the order that covers public schools.
"We conclude that local health officers do not appear to have statutory authority to do what the Order commands," justices wrote in an unsigned majority opinion.
The court's majority wrote that denying students in-person education had the potential to harm schools, children and their parents.
"Many parents irreparably lose the full benefits of the communal education they chose for their children, including in-person instruction, relationships with teachers and other students, and religious and spiritual formation," wrote the conservative justices. "And while technology may mitigate some ill-effects for some students, Petitioners maintain that distance and technology-based learning is less than ideal, if not harmful, for many students."
The court's liberals dissented, led by Justice Rebecca Dallet, who accused the court's conservative majority of being inconsistent.
"Throughout the COVID-19 pandemic, certain members of this court have repeated the mantra of local control: that we should take care not to 'usurp' local officials' ability to control the spread of COVID-19 due to the virus's unique impact on each locality," Dallet wrote. "But today, those same justices interfere with a local health officer's ability to make difficult, health-based decisions."
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Dallet also said that the plaintiffs who brought the case had failed to show that holding virtual school on a temporary basis would undermine students.
"Everything about the pandemic is less than ideal but inconvenience does not rise to the level of an irreparable harm that this court must remedy," Dallet wrote.
Conservative Justice Rebecca Bradley wrote separately to defend the court's majority, saying that while the order was issued locally, it involved a state law.
"This is exactly the type of case the people of Wisconsin elected us to decide," Bradley said.
The Wisconsin Institute for Law and Liberty (WILL), which earlier this year challenged Gov. Tony Evers' "Safer at Home" order and more recently challenged Evers' statewide mask mandate, praised the ruling. WILL challenged Dane County's order on behalf of multiple families and private schools, School Choice Wisconsin, and the Wisconsin Council of Religious and Independent Schools.
"Our clients will be able to do what they do — educating children in Dane County," said Rick Esenberg, WILL executive director.
The Madison Metropolitan School District, which had announced plans to move to an all virtual format prior to Dane County's order, wouldn't be affected by the ruling. Reached Thursday night, a spokesperson for MMSD didn't have an immediate comment.
Dane County's government has been among the most aggressive in the state in trying to slow the spread of COVID-19, but multiple events this week have shown the limits of the county's power.
Cases have spiked in Dane County as the University of Wisconsin-Madison resumes in-person instruction. On Thursday, the county reported 456 new cases of COVID-19 according to Parisi, shattering the previous single-day record and accounting for nearly one-third of all new coronavirus cases reported statewide.
"This virus is here and it's spreading," Parisi said. "Public Health's order prioritized the safety and well-being of kids, parents, teachers, and the communities they call home. Tonight’s order will jeopardize those goals and may lead to more illness and needless human suffering."